Smithtown in talks to purchase topless bar

May 13, 2019

Smithtown may buy a topless bar that has operated for decades across from the town’s iconic bull statue on West Jericho Turnpike despite officials’ efforts to zone it out of the location.

When town officials tried to close the bar in 2003, TJS sued in Eastern District of New York on free speech grounds, arguing that the town did not give adequate alternative sites or avenues of communication for the business. The case rose to the United States Court of Appeals for the Second Circuit before it was remanded to the district court and dismissed in 2010.

How the club remains open in the same location almost a decade later was unclear. Town attorney Matthew Jakubowski did not make himself available for an interview last week. Town spokeswoman Nicole Garguilo said that in 2014 Jakubowski opened an investigation into the club and later issued summonses. He is “currently prosecuting this in district court,” she said.

Anthony Guardino, a lawyer specializing in land use and municipal issues at the Farrell Fritz firm in Hauppauge, said the case had added nuance to Supreme Court decisions on the First Amendment. While the district court found that alternative sites existed when Smithtown passed its zoning, the appeals court held that the First Amendment requires courts to also consider the adequacy of alternative sites available when zoning is challenged, he said.

“City, town and village planners need to be aware of this,” he said. If alternative sites aren’t available at the time of challenge, “that’s going to create a constitutional issue.”